This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0581

                           Todd John Hendrickson, petitioner,
                                      Appellant,

                                           vs.

                             Commissioner of Public Safety,
                                    Respondent.

                               Filed December 19, 2016
                                       Reversed
                                   Bjorkman, Judge

                             McLeod County District Court
                               File No. 43-CV-15-1447

James M. Ventura, Wayzata, Minnesota; and

Jesse Oelfke, Carver, Minnesota (for appellant)

Lori Swanson, Attorney General, Cory Beth Monnens, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

       Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges the district court order sustaining the revocation of his

driver’s license, arguing the implied-consent advisory he received was inaccurate and

violated his right to due process. We agree and reverse.
                                         FACTS

       On August 23, 2015, at approximately 1:30 a.m., Brownton Police Officer Larry

Warzecha was driving westbound on Highway 212 when he saw a vehicle cross the

centerline, return to its own lane, and then drift into and drive on the shoulder for

approximately one-quarter mile. Officer Warzecha initiated a traffic stop and identified

appellant Todd Johnson Hendrickson as the driver. Officer Warzecha administered field

sobriety tests, which Hendrickson failed. After a preliminary breath test indicated an

alcohol concentration of 0.00, Officer Warzecha began to suspect Hendrickson was under

the influence of a controlled substance. Another officer administered a Romberg test,

which indicates impairment resulting from a controlled substance.            Based on his

observations and Hendrickson’s performance on the Romberg test, the other officer also

believed Hendrickson was under the influence of a controlled substance.

       Officer Warzecha arrested Hendrickson for driving while impaired (DWI) and

transported him to the McLeod County Jail. Officer Warzecha read the implied-consent

advisory, which informed Hendrickson, among other things, that refusal to submit to a

test is a crime.    Hendrickson indicated he understood the advisory, declined the

opportunity to contact an attorney, and refused to take both blood and urine tests.1

       Respondent Commissioner of Public Safety subsequently revoked Hendrickson’s

driver’s license. Hendrickson petitioned for judicial review of the revocation, arguing the

implied-consent advisory violated his due-process right because it materially misstated


1
 Officer Warzecha did not request a breath test because it would not reveal the presence
of a controlled substance.

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the law. The district court denied the petition, sustaining the license revocation.

Hendrickson appeals.

                                       DECISION

       Minnesota’s implied-consent law provides that any person who drives a motor

vehicle in the state “consents . . . to a chemical test of that person’s blood, breath, or urine

for the purpose of determining the presence of alcohol, a controlled substance or its

metabolite, or a hazardous substance” when certain conditions are met. Minn. Stat.

§ 169A.51, subd. 1(a) (2014). A test is required when a person has been lawfully arrested

for DWI. Id., subd. 1(b) (2014). When a test is requested, the person must be told that

“refusal to take a test is a crime” and that he has a limited right to consult with an

attorney. Id., subd. 2(a)(2), (4) (2014). If the person refuses to permit a test, no test may

be given. Minn. Stat. § 169A.52, subd. 1 (2014). But if the person refuses to submit to a

test, the commissioner must revoke the person’s license to drive. Id., subd. 3 (2014).

       While this appeal was pending, the United States Supreme Court held that the

search-incident-to-arrest exception does not authorize law enforcement to take a

warrantless blood sample from a suspected impaired driver. Birchfield v. North Dakota,

 (2016).          Following Birchfield, our supreme court likewise

determined that the search-incident-to-arrest exception does not authorize blood or urine

tests when an individual is arrested on suspicion of driving while impaired. See State v.

Trahan, 

 (Minn. 2016) (determining the exception does not

authorize blood tests); State v. Thompson, 

 (Minn. 2016).

Hendrickson contends that the implied-consent advisory he received violated his right to


                                               3
due process because it informed him that refusal to take a blood or urine test is a crime

when a criminal test-refusal charge would be unconstitutional.

      The United States and Minnesota Constitutions guarantee that no individual shall

be deprived of life, liberty, or property without due process of law. U.S. Const. amend.

XIV, § 1; Minn. Const. art. I, § 7; see also Sartori v. Harnischfeger Corp., 

 (Minn. 1988) (stating that due-process protection is “identical” under both

constitutions). “Whether an implied-consent advisory violates a driver’s due-process

rights is a question of law, which this court reviews de novo.” Magnuson v. Comm’r of

Pub. Safety, 

 (Minn. App. 2005).

      Hendrickson argues that the implied-consent advisory violated his due-process

rights by inaccurately advising him that test refusal was a crime. He relies on McDonnell

v. Comm’r of Pub. Safety to support his argument. 

 (Minn. 1991). In

McDonnell, an officer gave an implied-consent advisory that informed the driver she

might be subject to criminal prosecution if she refused to take a breath test. 

.

But because the driver did not have a prior license revocation, she could not actually be

prosecuted for refusing to submit to a breath test. 

 The supreme court determined that

by threatening criminal charges the state was not authorized to impose, the implied-

consent advisory violated the driver’s due-process rights. 

. The commissioner

argues that this case is distinguishable because, unlike the advisory given in McDonnell,

the advisory given to Hendrickson was accurate at the time it was read because

Birchfield, Trahan, and Thompson had not been decided. We are not persuaded.




                                            4
       This court rejected this precise argument in Johnson v. Comm’r of Pub. Safety.

___ N.W.2d ___, ___, 

, at *10-11 (Minn. Nov. 7, 2016). Johnson was

arrested on suspicion of driving while under the influence of a controlled substance. Id.

at *1. After being read the implied-consent advisory, Johnson refused to submit to both

blood and urine tests. Id. As here, the commissioner argued that because the advisory

was given before Thompson was decided, the advisory was accurate at the time and not

misleading. Id. at *10. We disagreed, and ultimately determined that the advisory

violated Johnson’s due-process rights. Id. at *10-11. We determined:

              The circumstances of this case fall squarely within
              Thompson’s holding, and the refusal statute is therefore
              unconstitutional as applied to [the driver]. Because a criminal
              test-refusal charge would be unconstitutional, the implied-
              consent advisory inaccurately informed [the driver] that
              refusal to take a urine test is a crime. When the state
              provided that inaccurate advisory, it misinformed [the driver]
              regarding the penalties he would face if he refused to submit
              to testing, in violation of his right to due process, as
              established in McDonnell.

Id. at *12.

       Applying Johnson, we conclude that the implied-consent advisory Hendrickson

received violated his due-process rights. The advisory informed him that refusal to take a

blood or urine test is a crime. Because criminal charges based on refusal to submit to a

blood or urine test would be unconstitutional under Birchfield, Trahan, and Thompson,

the advisory was inaccurate and improperly misinformed him of the penalties he would

face if he refused to submit to testing, in violation of his due-process rights. The proper

remedy for this violation is rescission of the license revocation. Id. Accordingly, the



                                            5
district court’s order sustaining the revocation of Hendrickson’s driver’s license must be

reversed.

      Reversed.




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